Confidential sources

Case set precedent a quarter century ago on reporter shield law in Idaho

By William L. Spence

It wasn’t Deep Throat and the story didn’t topple a presidency, but an anonymous phone call to a Moscow reporter did help establish the legal precedent that protects Idaho reporters today.

This year marks the 25th anniversary of the court ruling in the case, known as In Re Wright.

It began in the fall of 1982, when reporter Jim Wright of the Moscow Daily Idahonian — now the Moscow-Pullman Daily News — wrote a story about a drug bust near Deary. The story was based on a law enforcement press release, which indicated about 100 marijuana plants worth $50,000 to $60,000 had been seized.

The next day, Wright received an anonymous call from someone disputing those figures. After meeting in person, he determined the caller was involved in growing the marijuana. Using information provided by the source, he established that only a dozen plants and two pounds of marijuana had been seized.

Wright discussed his role in the case during a University of Idaho symposium in April. He was joined by A.L. “Butch” Alford — then publisher of the Daily Idahonian and now president of TPC Holdings Inc., which owns the Lewiston Tribune and Moscow-Pullman Daily News — and Charles “Chuck” Brown, the Lewiston attorney who represented the paper.

Called to provide corroborating evidence in the initial trial, Wright was charged with contempt when he refused to identify his source; the paper received a $500 fine, which it paid. Wright was then subpoenaed a second time after the first judge was disqualified. When he again refused to reveal his source, the paper was fined $500 per day. That decision was appealed to the Idaho Supreme Court.

Up to that point, Wright said, all Idaho court decisions regarding confidentiality of sources had gone against the media. No one knew if the court would change direction this time around.

Brown, who argued the case before the Supreme Court, said protecting the identity of confidential sources is something newspapers have fought for since Colonial times. “The genesis is free speech, not just freedom of the press,” he said. “It provides protection for society and for journalists.”

Some states recognize this by conferring absolute privilege on reporters, meaning they can never be compelled to reveal their sources. Most, however, grant a qualified privilege, in which the public’s right to know is balanced against other considerations.

In 1982, Idaho reporters didn’t have privilege under any circumstances. Just a few years earlier, in Caldero v. Tribune Publishing Co. — another Alford appeal — the court had ruled that reporters had no right to keep their sources confidential.

“No newsman’s privilege against disclosure of confidential sources … exists in an absolute or qualified version,” the court said.

But a different set of justices in the Wright case explicitly refused to follow the Caldero precedent. Instead, they set their own standard, saying Idaho reporters could be required to divulge their sources only if three conditions are met: There must be probable cause indicating the reporter has information relevant to the case; the information can’t be obtained by other means; and the information must be relevant and important to the case.

“I don’t think anyone recognized the significance (of the ruling) at the time,” said Kenton Bird, then editor of the Daily Idahonian and now director of UI’s School of Journalism and Mass Media.

After the Supreme Court issued its decision, the Wright case was remanded back to the lower court to determine if the three criteria were met.

“But funny enough, after two years in the legal system, nobody cared any more,” Wright said. “No one ever called for a hearing to decide (if the criteria were met), and the dope in the evidence locker had rotted away.”

Reporter privilege continues to be a challenge in the Internet Age, with questions about who qualifies as a journalist and what type of information is protected. Congress is also debating the merits of a federal shield law. But 28 years after a minor drug-bust story prompted an anonymous phone call, Idaho reporters and their confidential sources can at least count on some degree of legal protection.